duress

• when is duress available

  duress is available for all crimes except murder, attempted murder and accomplice to murder
• what are two types of duress

  Duress by threats and duress by circumstances
• define duress by threats

  when D is threatened with death or serious injury, by another person to commit a criminal offence
• define duress by circumstances

  the circumstances in which D finds themselves in have forced D to commit the offence
• R v Gotts


  Duress not available for attempted murder

  16 years old boy threatened with violence by father unless he stabbed his mother

  D attacked his mum but didnt kill her

  defence of duress unavailable to him
• the nature of the threat must be serious

  - death or serious injury, threats to property alone insufficient

  - a threat to sexuality is insufficient but a threat to rape is enough

  - threats to other people close to D will also support the defence ( immediate family members = R v Martin Cohn )
• when can D not use duress

  if he mistakenly thinks he is being threatened due to being Voluntarily intoxicated

  but if D not mistaken and intoxication irrelevant defence still available
• there must be a nexus between threat and crime commited case ?

  Cole

  - threats made were to repay him not commit a crime of robbing

  - so not a sufficient connection between threats and crime he committed so defence unavailable
• what happened in graham


  - man told D to pull flex which killed mans wife

  - D did for a minute and v died

  - Ds conviction upheld as threat must be one that ordinary man wouldnt have resisted
• what did the graham case establish


  the case established a two-part subjective and objective test to be considered by the jury

  1) - was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death

  ( subjective )

  2) - would a sober person of reasonable firmness, sharing the characteristics of accused, have responded the same way ( objective )

  
  

  - the graham test - should D have resisted the threats
• describe case for subjective test (1st part)

  Hasan ( 2005 )

  - confirmed decision in graham that Ds belief of threats must be reasonable and genuine
• describe objective test


  characteristics will be considered (bowen)

  - age, , mentally ill, disability, gender, pregnant
• escape opportunities and police protection

  D expected to take advantage of any reasonable opportunity that they have to escape. if they fail to take it, the defence may fail

  ( gill ) - period where he was left alone and could have raised the alarm but stole lorry anyway. as he had a safe avenue of escape D couldn't rely on defence of duress
• imminence of threat


  HASAN

  the HL stated the defence to be available the threat had to be one that D reasonably 'expects to follow immediately or almost immediately' R v abdul-hassain
• voluntary exposure to risk ( gang membership and self-induced duress )

  HASAN - HL stated the defence of duress is unavailable where D voluntarily associates with others who are engaged in criminal activity and he foresaw the risk of being subjected to any compulsion by threats
• Explain Duress of Circumstances

  the courts seem to prefer this over necessity, and its a recent development since willer 1986 when a driver had to drive on a pavement to avoid a group of threatening youths. D is arguing he felt forced to act due to surrounding circumstances.
• case for DBC


  MARTIN - ds wife threatened suicide unless D drove her son to work. D was disqualified from driving but agreed to do so. he was convicted of driving whilst disqualified. on appeal it was ruled that DBC could be available as a defence and same two stage test put forward for DBT can be applied
• is it a complete defence or not

  available as a complete defence except for murder, attempted murder or any other killing ( r v gotts, r v howe)
• what quote from AG V wheelan about DBT

  ' SO GREAT AS TO OVERBEAR ORDINARY POWERS OF HUMAN RESISTANCE
• what must the threat be


  to commit a specific offence (R V COLE )